Category Archives: Mount Vernon Criminal Defense Attorney

Crime Lab Supervisors Cannot Testify About Test Results Reached By Non-testifying Subordinates

Bellingham Defense Attorney, Confrontation Clause, Hearsay, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Vehicular Assault, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Wilson Elser | Reuters

In State v. Hall-Haught, No. 102405-3 (May 29, 2025), the WA Supreme Court reversed the defendant’s conviction for Vehicular Assault and held the Confrontation Clause prohibits crime laboratory supervisors from testifying about test results reached by a nontestifying subordinate.  In short, if the analysis hinges upon whether a statement from a lab analyst is true, that analyst must personally testify for their opinion to be admissible at trial.

FACTUAL BACKGROUND

Mrs. Hall-Haught was involved in a head-on collision with another. The collision caused the trunk of her vehicle to pop open, spewing drug paraphernalia across the roadway. Law enforcement responded to the scene of the accident. Both individuals were transported to the hospital, so the officer did not perform any field sobriety tests on Hall-Haught. Washington State Trooper Williams, upon arrival at the hospital, observed that Hall-Haught had bloodshot and watery eyes, and dilated pupils. Trooper Williams was granted a search warrant to test Hall-Haught’s blood. Hall-Haught’s lab results showed 1.5±0.40 nanograms per milliliter of tetrahydrocannabinol (THC) in her blood, but no alcohol was detected.

The State charged Hall-Haught with Vehicular Assault, alleging that she had driven or operated a vehicle either (i) in a reckless manner, and/or (ii) while under the influence of intoxicating liquor or any drug, and/or (iii) with disregard for the safety of others.

At her jury trial, the State called Ms. Harris, a supervisor with the Washington State Patrol Toxicology Laboratory. Harris testified that she was not the technician who tested the blood samples, but that she reviewed and signed off on the lab report of Hall-Haught’s blood samples testing. Harris testified to her experience and training, to include working as a prior bench scientist at the laboratory, and about her knowledge about the Washington State Patrol (WSP) standard operating procedures. Harris testified that as a supervisor, she no longer examined and tested blood samples, but she reviewed the work of the bench scientists.

Ms. Krantz was the forensic analyst that performed the toxicology examination and produced the report on Hall-Haught’s blood samples. The State called Harris instead of Krantz to testify about the toxicology results. Hall-Haught objected to Harris’ testimony and argued that introducing the test results without the testimony of Krantz, the technician who performed the blood test, violated her right to confront and cross-examine the witnesses against her. The trial court admitted the lab test results over Hall-Haught’s objection.

Hall-Haught was convicted of vehicular assault. She timely appealed. Eventually, the WA Supreme Court granted review to address the issue of whether the Confrontation Clause is violated when forensic test results are admitted into evidence without testimony from the lab analyst who conducted the testing.

COURT’S ANALYSIS & CONCLUSIONS

The Court began by saying the Sixth Amendment Confrontation Clause and the Washington Constitution provide that a defendant in a criminal prosecution shall have the right to confront or meet the witnesses against them. The Confrontation Clause bars admission of testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify, and the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

A statement is testimonial if the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). It is nontestimonial if the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. Testimonial statements are barred at trial unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant.

Here, the WA Supreme Court held the lab toxicology report in this case was testimonial and therefore inadmissible.

“The record before us shows that Hall-Haught’s blood was seized as evidence to further establish the cause of the collision,” said the Court. It reasoned that WSP Trooper Williams testified that Hall-Haught was the “causing driver,” but she was not cited at the scene because the investigation was still in process.  He applied for a search warrant to obtain Hall-Haught’s blood sample based on the totality of the circumstances which included (i) a cannabis pipe and paraphernalia at the scene, (ii) Hall-Haught’s admission of regular cannabis use, (iii) the mechanism of the collision, and (iv) Hall-Haught’s bloodshot and watery eyes, and dilated pupils. Hall-Haught’s blood was sent to the WSP toxicology laboratory that is specifically used for law enforcement DUI drug testing cases.

Next, the Court held the WSP toxicology lab report was admitted to prove Hearsay. A court analyzing a confrontation clause claim must identify the role that a given out-of-court statement served at trial. If the expert witness communicates an absent witness’ out-of-court statement in support of their own opinion, and the statement provides that support only if true, then the out-of-court statement is admitted for its truth.

The Hearsay in this case was Hall-Haught’s lab reports. They were introduced to show the truth of what they asserted: that Hall-Haught had cannabis in her system and that it was a contributing factor to the collision. Importantly, however, the Court pointed out the glaring fact that Ms. Krantz was an absent witness:

“The record provides no information as to Krantz’s unavailability to testify or that Hall-Haught had a prior opportunity to cross-examine her. Therefore, under the confrontation clause, Krantz was a “witness” Hall-Haught was entitled to confront at her trial.” ~WA Supreme Court

With that, the WA Supreme Court held that Ms. Hall-Haught’s Confrontation Clause rights were violated by Ms. Krantz’s absence at trial. “Ms. Krantz, the analyst who performed the testing and wrote the report, was the real witness against Hall-Haught and not Ms. Harris,” said the Court.

My opinion? Excellent decision. Criminal defendants must be empowered to rigorously test the State’s evidence. Scrutinizing the results generated by the toxicology laboratory is an effective means of subjecting the State’s awesome prosecutorial powers to such scrutiny.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

WA Supreme Court Upholds Ban on Large-Capacity Magazines for Firearms

Bellingham Defense Attorney, Firearm, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Gun rights group files challenge against Washington's recently-passed large-capacity magazine ban – KIRO 7 News Seattle

In Washington v. Gator’s Custom Guns the WA Supreme Court upheld Washington state’s ban on selling or manufacturing large-capacity magazines. The majority concluded that large-capacity magazines are not “arms” within the scope of the state or federal constitutional right to bear arms. Moreover, the ability to purchase them is “not necessary to the core right to possess a firearm in self-defense.”

BACKGROUND FACTS

In 2022, the Washington State Legislature enacted ESSB 5078. The legislation prohibits the manufacture, import, distribution, or sale of any “large capacity magazine” (LCM) in Washington. LCMs are defined as “ammunition feeding devices with the capacity capable to accept more than 10 rounds of ammunition.”

Gator’s Custom Guns, a Kelso-based gun store, allegedly continued to sell prohibited LCMs after ESSB 5078 went into effect. In July 2023, the Washington attorney general issued a civil investigative demand. In August, Gator’s filed a petition to set aside the demand as invalid and unenforceable. Gator’s alleged that ESSB 5078 violates the right to bear arms as protected by article I, section 24 of the Washington Constitution. In September, the State separately filed a CPA enforcement action against Gator’s and its owner. Gator’s answer raised the unconstitutionality of ESSB 5078 under both constitutions as an affirmative defense. The Cowlitz County Superior Court ordered the two cases consolidated. After some legal wrangling, the WA Supreme Court granted direct review to decide the case.

COURT’S ANALYSIS & CONCLUSIONS

Washington Supreme Court justices ruled 7-2 that the new state law doesn’t violate Americans’ right to bear arms because “large capacity magazines are not ‘arms.’”

“We conclude that LCMs are not protected by article I, section 24 because (1) LCMs are not instruments designed as weapons, (2) LCMs are not traditionally or commonly used for self-defense, and (3) the right to purchase LCMs is not among the ancillary rights necessary to the realization of the core right to bear arms in self-defense.” ~WA Supreme Court

The Court reasoned that first, LCMs are not weapons—they are attachments to weapons, or accessories. Further, it is not factually accurate to say that LCMs are “integral components” of firearms. Thus, LCMs are not required for a firearm to function. Moreover, LCM’s are not necessary for self-defense. Here, the Court mentioned it was presented with no credible and persuasive evidence or argument that LCMs are commonly used for such a purpose.

The WA Supreme Court further reasoned that the right to purchase LCMs was not an ancillary right necessary to the realization of the core right to possess a firearm in self-defense:

“In contrast, without an LCM, a semiautomatic firearm is still capable of firing (up to 10 rounds, if it is equipped with a magazine falling outside ESSB 5078’s restriction, or 1 round at a time, if it is equipped with none at all) until the operator must simply reload to continue operating the firearm as desired. This fulfills the firearm’s purpose as a tool for realizing the core right of self-defense.” ~WA Supreme Court

For the aforementioned reasons, the WA Supreme Court found that ESSB 5078 complies with the constitutional safeguards of the Second Amendment as well as article I, section 24 of the Washington Constitution.

Please contact my office if you, a friend or family member are charged with a Firearm Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

“Intelligent Speed Assistance” Devices Gaining Popularity

Bellingham Defense Attorney, Legislation, Mount Vernon Criminal Defense Attorney, Reckless Driving, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

Briefing: Intelligent Speed Assistance (ISA) - ETSC

Very interesting article in Popular Science discusses recent legislation giving judges the authority to mandate the installation of devices that physically prevent repeat offenders from exceeding posted speed limits. Earlier this month, the Washington State Senate overwhelmingly passed House Bill 1596 (40-8), known as the BEAM Act, which aims to reduce reckless speeding and enhance road safety across the state.  At least five other states, including Cohen’s home state of New York, are considering similar legislation.

Apparently, the political will for this technology exists. Across the country, statistics show that a small portion of drivers who consistently drive too fast—a group referred to by advocates as “super speeders”—are responsible for a sizable chunk of fatal traffic deaths.

There’s reason to believe the issue is getting worse, too. Research shows drivers across the country started speeding more during the earlier stages of the COVID-19 pandemic and lockdown. Jessica Cicchino, vice president of research at the Insurance Institute for Highway Safety, believes some drivers may be tempted to drive faster due to “empty roads” driving during lockdowns. But that habit seems to have lingered even when traffic increased. The National Highway Traffic Safety Administration (NHTSA) claims speeding-related fatalities in the US reached a 14-year high in 2021.

Supporters of anti-speed legislation see a parallel between the proposed court-mandated speed limiters and the more widely known ignition interlock devices (or “in-car breathalyzers”) used for people convicted of driving under the influence.

WHAT IS “INTELLIGENT SPEED ASSISTANCE?”

Devices broadly referred to as “Intelligent Speed Assistance” (ISA) systems, leverage advances in GPS and other technologies embedded in modern connected cars to apply a similar “in-car breathalyzers” concept to speeding. And while the movement against so-called “Super Speeders” is gaining momentum, some worry that mandatory ISA devices could introduce new, unintended safety risks. The legislation may also face an uphill battle in rural, lower-population states where driving—and driving fast—is deeply ingrained in daily life and culture.

Advocates say ISA devices, particularly those targeted toward alleged Reckless Driving, could make streets significantly safer for both motorists and pedestrians. According to the National Highway Traffic Safety Administration (NHTSA), more than 11,775 people died in speed-related crashes last year. Speeding, the agency says, was a “contributing factor” in 29 percent of all traffic fatalities.

HOW DOES INTELLIGENT SPEED ASSISTANCE WORK?

Devices designed to limit a vehicle’s top speed, sometimes referred to as governors or speed limiters, date back to the early-20th century. Intelligent Speed Assistance (ISA) systems differ in that they rely on a combination of the vehicle’s current speed and the posted speed limit. These devices determine the legal speed limit using GPS data synced with a pre-programmed digital map, or by employing the vehicle’s onboard cameras and LiDAR sensors to read speed limit signs in real time. Cameras and LiDAR are the same types of sensors used to help Waymo and other autonomous vehicles “see” the world around them.

Once an ISA system detects that a driver has exceeded the speed limit, it triggers various visual and audio cues, usually in the form of warning chimes and flashing dashboard lights. These systems are referred to as “passive” ISA. All new vehicles sold in the European Union, as of last year, must have passive ISA systems. The “active” ISA systems, which the Super Speeder legislation focuses on, go a step further by using tactile responses to push back on the accelerator or limit the engine’s power output, physically preventing the driver from exceeding a certain speed.

Judges or local governments can set thresholds for how far over the speed limit a driver can go before the system intervenes—typically around 5 mph above the posted limit. These devices are designed to detect changes in speed limits in advance, giving the driver time to slow down gradually. In theory, this should help avoid scenarios where a vehicle suddenly slams on the brakes upon entering an area with a lower speed limit.

DOES ISA TECHNOLOGY HAVE CRITICS?

Yes. Some opponents argue that the inability to temporarily exceed the speed limit could create dangers in certain scenarios, like when a driver is suddenly confronted with a tailgater. There are also emergency situations, like rushing to a hospital due to an injury or pregnancy, or quickly avoiding a potential collision, where it would seem reasonable to allow a driver to momentarily exceed the posted speed limit at their discretion.

Some legislation, like the one in Washington, attempts to side step this by including a big red button that drivers could press up to three times per month to override their mandatory ISA system. The button is configurable, and can be programmed to only allow a certain amount of uses over a certain amount of times.

Please contact my office if you, a friend or family member are charged with Reckless Driving or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

The Growth of Self-Defense Insurance

Assault, Bellingham Defense Attorney, Firearm, Mount Vernon Criminal Defense Attorney, Self-Defense, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

SELF DEFENSE INSURANCE

Apparently, the number of Americans buying self-defense insurance — dubbed “murder insurance” by critics — has soared in recent years. The growth is linked to a rise in gun ownership, stand-your-ground laws and more states allowing residents to carry concealed firearms in public without a permit. About two million people have signed up, according to industry executives, some of whom estimate their membership has doubled in the past five years.

WHAT DOES A SELF-DEFENSE INSURANCE POLICY COVER?

The insurers offer a range of services, including bail and criminal-defense lawyers. Some also cover the cost of litigating civil lawsuits brought by victims of the shootings. The policies aren’t limited to shooting incidents. Most companies will cover a member charged with other crimes, such as threatening somebody with a gun, so long as there’s a plausible self-defense claim. Many companies offer upgraded plans that can include crime-scene cleanup costs (in-home or vehicle), TSA-violation expenses, accidental-discharge costs and coverage for spouses and minor children.

WHICH COMPANIES OFFER SELF-DEFENSE INSURANCE?

USCCA and rival U.S. Law Shield are the industry giants, but there are about a half dozen midsize and small players. They charge monthly fees ranging from about $11 to $59.

The companies’ marketing campaigns, which sometimes involve gun giveaways, include video testimonials from satisfied customers who shot in self-defense and got off, usually with no penalty. “There’s literally thousands of cases that have gone to trial that we have defended our members and exonerated them from charges,” said Tim Schmidt, USCCA’s founder and owner.

The fine print of their policies, however, shows the companies usually have wide latitude to reject a member’s claim. Some companies launch their own investigations to decide if it is legitimate. Some plans won’t cover a member who is intoxicated during an incident, or if it involves shooting a family member. Many restrict members to their own stable of attorneys.

CAN YOU OBTAIN SELF-DEFENSE INSURANCE IN WASHINGTON STATE?

Several states, notably New York and Washington, have taken legal action to halt the sale of self-defense coverage. In 2019, Washington became the second state to ban NRA-backed insurance called “Carry Guard.” Now defunct, “Carry Guard” provided cash to gun owners to cover civil and criminal legal fees if they become involved in a shooting. Nevertheless, Armed Citizens’ Legal Defense Network, based in Centralia, Wash., offer self-defense insurance.

My opinion? Although self-defense policies are helpful for those who truthfully respond in self-defense, they are not licenses to kill. Prosecutors are extremely wary of defendants who have purchased self-defense insurance before committing crimes. And at trial, a savvy prosecutor may seek an instruction that a defendant cannot rely on self-defense if s/he was the aggressor in a confrontation.

Please contact my office if you, a friend or family member are charged with a crime involving self-defense. Hiring an effective and competent defense attorney is the first and best step toward justice.

Beware The Purple Paint

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Is The Purple Paint Law Still In Effect In Louisiana?

Summer approaches – a perfect time to enjoy hiking in the warm sun. However, if you observe purple paint while walking certain wooded trails in certain states, then beware. According to USA Today, it might be best to turn around and find another route, because you might be trespassing.

THE PURPLE PAINT LAW

Many U.S. states abide by the “purple paint law,” which allows property owners to use purple paint marks on trees and fences to deter people from trespassing. Using the paint is akin to posting a “No Trespassing” sign, although not everyone knows what it means.

So far, more than 20 states have a “purple paint law” in place, the Hudson Valley Post reported. Officials chose the color purple because it stands out in a natural setting, is not used in the forestry industry and is a hue people who are colorblind can identify, the outlet said. Purple paint is also a preferred option over signs because property owners often struggle with keeping signs up due to wind, rain or even vandals.

WHICH STATES HAVE “PURPLE PAINT LAWS”?

Fortunately, Washington State does not have “Purple Paint Laws.” Therefore, you are unlikely to be charged with Criminal Trespass.

According to AL.com, the U.S. states with laws identifying purple paint (or designated colors) for “no trespassing” include Alabama, Arizona, Arkansas, Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Missouri, Montana, New Hampshire, North Carolina, Pennsylvania, South Carolina, Tennessee, Texas, Virginia and West Virginia.

WHAT HAPPENS IF YOU VIOLATE THE “PURPLE PAINT LAW”?

Consequences of violating the “purple paint law” vary depending on the state, but they include charges, fines and possibly jail time.

Unfortunately, pleading ignorance won’t help. According to David M. Lurie, a Missouri-based criminal defense attorney, not knowing what the lines mean and unintentionally trespassing is not a valid defense. He added that the punishment for crossing the lines could vary depending on what happened after you entering someone else’s property by mistake.

“If you harmed an animal or took something, that would be yet another offense,” the attorney says. “If you did no harm and left when you were told to leave or realized you were on someone’s private property, many property owners wouldn’t call law enforcement.”

IS PURPLE THE ONLY COLOR TO BE AWARE OF?

While purple is used in most U.S. states, some states with similar laws designate different colors, such as orange, blue, silver, yellow and red. For example, the paint used in Maryland is blue since the state’s law was passed in 1989, according to the University of Maryland Extension.

Please contact my office if you, a friend or family member are charged with a crime while innocently hiking. Hiring an effective and competent defense attorney is the first and best step toward justice.

Driving While Tinted

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

PA Legal Car Window Tinting Shades - Explained

Spring and summer approach. Warmer temperatures and more sunlight are great reasons to tint your car windows. Dark tinted windows can indeed help keep a car cooler in the summer by reducing heat from the sun. However, in many states – including Washington – there are legal limits on how dark you can tint your windows. It’s crucial to be aware of these regulations to avoid fines, searches, seizures and possible arrests.

WHAT ARE THE FEDERAL WINDOW TINTING LIMITS?

The Federal Motor Vehicle Safety Standards limit window tint to 70 percent transmission (the percent of light that passes through a window) for “glazing areas requisite for driving visibility.” And which glazing areas are requisite? Generally, it’s the windshield and the front windows. When you buy a new car, that’s the rule vehicle sellers have to follow. Practically speaking, all windows in new vehicles have some reduction in light transmission. This small amount of tint helps to reduce glare and UV exposure. If you take a close look at your windows, you’ll notice a slight reduction in light compared to having your window open.

The federal rules apply to businesses that sell and repair vehicles, but not to individual car owners. That’s covered by state laws, and they vary from state to state. No state allows tinting of the windshield lower than the federal standard. Front windows range from no additional tint to as dark as 20 percent transmission, and in some states there’s no limit to how dark you can tint your rear windows.

WHAT IS THE WINDOW TINT LIMIT IN WASHINGTON STATE?

In Washington, the transmission limit is 24 percent for all windows (except the windshield, of course). At that tint level you might not be able to see a driver’s face. It depends on where you, the sun and the driver are, in relation to each other. Given the limited number of ways that road users can communicate with each other, being able to see and acknowledge each other is important. Go too dark with your tint and you give that up. A driver might not even notice the problem because they can see other drivers, cyclists and pedestrians. But those people can’t see the person behind the dark window tint.

IS IT A CRIME OR TRAFFIC INFRACTION TO DRIVE WITH WINDOWS TINTED TOO DARK?

A person is guilty of Unlawful Installation of Safety Glazing or Film Sunscreening Material if he or she knowingly installs safety glazing or film sunscreening material in violation of RCW 46.37.430. The fine for driving with illegal window tint in Washington is typically around $136. Law enforcement may require your vehicle to undergo a window tint inspection. If your vehicle fails the inspection, you may need to remove the illegal tint. Fortunately, Washington law allows for medical exemptions for window tint, meaning a doctor’s note can allow for darker tint if deemed necessary. 

CAN POLICE PULL OVER MOTORISTS AND INITIATE A SEARCH IF VEHICLE WINDOWS ARE TOO DARK?

No. By itself, police lack probable cause to search your vehicle and/or arrest you for a crime if you are pulled over for having dark window tints. They would need to observe something illegal, secondary to the tint, to search your car. Other factors, like furtive movements, nervousness, or the odor of marijuana, would need to be present to establish probable cause.

Please review my Search and Seizure Legal Guide and contact my office if you, a friend or family member are charged with a crime after being pulled over for darkly-tinted windows. Hiring an effective and competent defense attorney is the first and best step toward justice.

High Court Denies Defendant’s Request For Mental Health Sentencing Alternative

Bellingham Defense Attorney, Mental Health, Mount Vernon Criminal Defense Attorney, No Contact Order, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Mental health disorder names - not criminally responsible

In State v. Colon, No. 59046-8-II (Apr. 29, 2025), the WA Court of Appeals held that sentencing courts may deny a defendant’s request for a Mental Health Sentencing Alternative (MHSA). Reasons for denial may include (1) no nexus between a defendant’s mental health diagnoses and the crime; (2) the victim opposes a MHSA; (3) the defendant has a lengthy criminal history and non-compliance with court orders with limited history of engagement in mental health treatment, and (4) continued treatment within prison is more suitable.

FACTUAL BACKGROUND

Colon was convicted of felony violation of a no-contact order by going to his ex-wife and children’s apartment. He requested sentencing under the MHSA. However, the trial court denied his request and sentenced Colon to 60 months of prison.

At a re-sentencing hearing, the court again denied Colon’s request for a MHSA  and found it inappropriate. The sentencing court concluded neither the community nor Colon would benefit from a MHSA for several reasons: there was no nexus between Colon’s mental health diagnoses and his conduct underlying his conviction; the victim’s opposition to a MHSA and her history with Colon; and Colon was a poor fit for a MHSA because of his criminal history, non-compliance with court orders, and limited history of engagement in mental health treatment.

Colon appealed, arguing that the sentencing court abused its discretion by denying his request for a MHSA on a non-statutory, impermissible basis.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) began by saying Courts may deviate from the standard prison sentences under specified circumstances, such as for a MHSA. Furthermore, granting an alternative sentence is entirely within the sentencing court’s discretion. However, the sentencing court must meaningfully consider the request for a discretionary sentence in accordance with the applicable law.

The COA stated a MHSA has four eligibility requirements:

  • The defendant is convicted of a felony that is not a serious violent offense or sex offense;
  • The defendant is diagnosed with a serious mental illness recognized by the diagnostic manual in use by mental health professionals at the time of sentencing;
  • The defendant and the community would benefit from supervision and treatment, as determined by the judge; and
  • The defendant is willing to participate in the sentencing alternative.

Here, Colon argued the sentencing court improperly held that a nexus must exist between his conduct and his mental health diagnosis. This “nexus,” he argued, is not one of the four eligibility requirements (elements) for a MHSA sentence. The COA felt differently.

“This is not an additional element, but simply one way to consider whether the community would benefit from treatment aimed at controlling symptoms arising from Colon’s mental health diagnoses that could lead to criminal conduct in the community,” said the COA. “Thus, the court did not abuse its discretion when it considered this factor in connection with whether a MHSA would benefit the community.”

Additionally, COA held that the sentencing court gave other reasons supporting its determination that a MHSA was inappropriate. These include the victim’s opinion, Colon’s criminal history, Colon’s noncompliance with community custody, and Colon’s  lack of participation in treatment and services. The COA reasoned these considerations speak to the court weighing Colon’s prospective treatment and how to protect the community.

“The court did not abuse its discretion in denying Colon’s request for a MHSA based on its consideration of a nexus between Colon’s mental health diagnoses and his conduct. Instead, the court considered the relevant statutory factors and made clear that its conclusion was based on the lack of benefit to both Colon and the community.” ~WA Court of Appeals

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Professionalism At Trial

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

What's jury duty like? The verdict, well, it's case by case | Connecticut Public

Photo Courtesy of Getty Images Creative

In State v. Hall, No. 57762-3-II (April 1, 2025, unpublished), the WA Court of Appeals held it is not ineffective assistance for a defense attorney to refer to the prosecutor as “my colleague” during a jury trial.  An adversarial proceeding need not be contentious.  It is a testament to the professionalism of both counsel that the trial was not a screaming match between angry combatants.

FACTUAL BACKGROUND

Mr. Hall had a jury trial on a sex offense. Throughout trial, defense counsel referred to opposing counsel as “my colleague.” During trial, Hall’s defense counsel told each of its witnesses that its “colleague, Ms. Zorn, may have” additional questions at the conclusion of its direct examination. The jury found Hall guilty. On appeal – and in addition to other arguments – Hall claimed ineffective assistance of counsel because his defense counsel repeatedly referred to opposing counsel as his “colleague.”

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) began its analysis stating that the right to counsel includes the right to effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) that defense counsel’s conduct was deficient, and (2) that the deficient performance resulted in prejudice.

Furthermore, to show deficient performance, Hall must show that defense counsel’s performance fell below an objective standard of reasonableness. To demonstrate prejudice, the defendant must show that there is a reasonable probability that, except for counsel’s unprofessional errors, the result of the proceeding would have been different.

The COA established that in Hall’s view, a trial, as an adversarial proceeding, should also be a contentious proceeding. Hall argued that this expression of respect led the jury to believe that the prosecutor was a person who can be trusted, which must have harmed his defense. Despite these arguments, the COA found Mr. Hall’s arguments unpersuasive:

“But this case was not about the lawyers, nor should it have been. As the jury was informed through several of the court’s instructions, the lawyers’ statements and argument are not evidence and the jury is the sole judge of the evidence and the credibility of witnesses. That the trial was not a screaming match between angry combatants is a testament to the professionalism of both counsel in this trial and not a reason to doubt the competency of Hall’s trial counsel. This argument is frivolous and we need not address it further.” ~WA Court of Appeals

With that, the COA held Mr. Hall was not deprived of the effective assistance of counsel and affirmed his conviction.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Vehicular Homicide Conviction Prohibits Defendants From Owning or Possessing Firearms

Bellingham Defense Attorney, Constitutional Rights, felony, Firearm, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

Judge Rules Bruen Doesn't Protect Felons' 2A Rights - Firearms News

(rawf8 / Shutterstock photo)

In State v. Hamilton, No. 85055-5-I (March 17, 2025), the WA Court of Appeals decided that disarming those convicted of Vehicular Homicide  is consistent with the United States’ historic tradition of firearms regulation.

FACTUAL BACKGROUND

Mr. Hamilton was convicted of Vehicular Homicide after a jury trial. Due to his felony conviction, the court notified Hamilton that he could no longer possess firearms. He was ordered to immediately surrender his concealed pistol license and any firearms in his possession. The court also imposed conditions forbidding him from owning, using, or possessing a firearm or ammunition, consistent with the prohibition set out under statute.

On appeal, Hamilton argued that Washington’s statutes restricting his firearms post-conviction violate the Second Amendment to the United States Constitution.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) discussed numerous U.S. Supreme Court decisions addressing Second Amendment. These decision include New York State Rifle & Pistol Association v. Bruen, and United States v. Rahimi. In applying stare decisis, the COA ultimately held that the overwhelming majority of courts addressing statutes that ban convicted felons from possessing firearms have rejected the contention that such laws are now unconstitutional. Next, the COA addressed Hamilton challenging the as-applied constitutionality of several Washington statutes that work in conjunction to strip a person’s right to bear arms upon conviction for a felony.

” . . . We conclude that disarming those with felony convictions is demonstrably consistent with America’s historic tradition of firearms regulation. Common law has a long history of disarming individuals, or categories of individuals, who were viewed as a danger to public order . . . The historical justification for felon bans reveals one controlling principal that applies to each historical period: violent or otherwise dangerous persons could be disarmed . . .”

“Groups of people who were categorized as presenting a danger to the public order during that era of our nation’s history included American Indians, Catholics, Quakers, slaves, and freed Black people. Such restrictions are repugnant and would fail modern constitutional scrutiny, but they nevertheless demonstrate historical precedent for restricting the firearms rights of persons perceived to be dangerous.” ~WA Court of Appeals

Finally, the COA addressed Hamilton’s argument that his felony conviction involved a “tragic accident” rather than the actual use of a firearm or political activity. The COA reasoined that Hamilton nevertheless committed a felony offense that resulted in the death of another person. As a result, reasoned the COA, his behavior places him squarely in the category of persons deemed dangerous to the public order for the purpose of historical firearms regulation.

With that, the Court of Appeals affirmed Hamilton’s criminal conviction.

Please contact my office if you, a friend or family member are charged with a Firearm Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Search Warrant For Marijuana Grow Operation

Bellingham Defense Attorney, Drug Offenses, felony, marijuana, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

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In State v. Le, No. 58336-4-II (Mar. 11, 2025)., the WA Court of Appeals held that a search warrant for an illegal cannabis grow operation does not need to include information that police checked the legal status of the grow operation and confirmed whether or not the operation is/was registered with the State.

FACTUAL BACKGROUND

In December 2017, law enforcement in Thurston County began investigating a possible illegal marijuana grow operation involving four properties. After investigating and surveilling the properties, law enforcement applied for search warrants. The warrant affidavit described the investigation and outlined numerous facts to establish probable cause. A superior court judge issued the warrants. Officers searched the four properties pursuant to the warrant and discovered over 1,000 marijuana plants. They also recovered tools, equipment, and supplies used to grow and package marijuana.

Officers arrested Ms. Le and her codefendants. The State charged Le with Drug Offenses to include unlawful possession of a controlled substance with intent to deliver and unlawful manufacture of a controlled substance. Le moved to suppress evidence obtained during the search. She argued that the affidavit failed to establish probable cause. She also argued that the affidavit did not sufficiently support probable cause because it did not indicate that officers checked the legal status of the marijuana grow operation. The trial court denied Le’s motions to suppress.

A jury found Le guilty of both counts. On appeal, Le argued thatargues that law enforcement was required to check whether the grow operations were legal and registered with the State and include that information in the affidavit.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals held that the facts in the affidavit were sufficient to establish probable cause to search the properties involved. First, the affidavit described vehicle traffic and movements “consistent with individuals involved in the manufacture of marijuana.” Second, the affidavit notes that police reported smelling the odor of “fresh growing marijuana” at the defendant’s properties. Third, the affidavit outlines unusually high energy consumption at the four properties. Fourth, the affidavit stated that individuals involved in marijuana grow operations “often put the power in other people’s names to help avoid detection and investigation.” Finally, the investigations discussed in the affidavit revealed that although Ms. Le reported no income, she and other co-defendants purchased multiple homes, paid significantly high energy bills, made home improvements, and purchased multiple vehicles.

“We hold that the facts outlined in the affidavit, when viewed together, established probable cause to search all four properties, regardless of the fact that the odor of marijuana was only detected at two of the four properties.” ~WA Court of Appeals

Further, the Court of Appeals held that the search warrant was valid even though the affidavit did not indicate whether the marijuana grow operations were legal and registered with the state. In short, the Court of Appeals held Ms. Le lacked legal authority to support the argument:

“The State, in response, correctly notes that no case has held that a search warrant application must affirm, as a precondition to a finding of probable cause, that officers searched the medical cannabis authorization database to confirm that the suspect does not hold a registration.” ~WA Court of Appeals

Additionally, the Court reasoned that a suspect’s presence in the registry does not mean that their possession or use of marijuana is, in all respects, lawful. Moreover, each of the locations named in the search warrant application were single-family residences. Under the law, the Liquor Control Board cannot approve a license to process cannabis at a personal residence.

With that, the Court of Appeals affirmed Ms. Le’s convictions.

Please review my Search & Seizure Guideline and contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.